Judges issue ruling without opinion, rejecting opponents’ argument that LUBA ignored state law
(the review) The Oregon Court of Appeals has affirmed the state Land Use Board of Appeals’ decision to allow redevelopment of the Wizer Block in downtown Lake Oswego.
The court’s ruling was issued Wednesday morning without opinion, essentially confirming that LUBA was correct when it ruled in April that developer Patrick Kessi’s proposed mixed-use project “easily met the required standard of review” for village character and is consistent with the city’s Community Development Code.
Attorneys for the Evergreen Neighborhood Association and Save Our Village argued before the court last month that LUBA had disregarded key elements of state law when it affirmed the City Council’s decision to allow the $93 million project.
Specifically, attorney Greg Hathaway argued that LUBA was required to consider three prongs — or elements — of state law when it evaluated a local government’s interpretation of its own Comprehensive Plan and land use regulations. LUBA had ignored two of those prongs, Hathaway said.
But the Court of Appeals disagreed, rejecting opponents’ arguments out of hand and indicating that the judges felt the case has no precedential value.
“This means the court agreed with the previous decision of LUBA and that there were no material facts raised by opponents that demonstrated any other plausible interpretation,” a spokeswoman for developer Patrick Kessi said Wednesday. “Therefore, a lengthy written opinion was not necessary.”
Hathaway told The Review that he was surprised and disappointed by the ruling.
“I think the case deserved a written decision,” he said, “because there is no appellate case law that addresses LUBA’s obligation to address all three prongs. LUBA did not address underlying policy issues.”
Hathaway also insisted that the case could set a precedent in land use law.
“I really expected there to be a written decision on that issue,” he said, “so that would probably justify perhaps a petition to the Supreme Court to see if the court would take it.”
Last week, Kessi said he had begun the “necessary preparation” to move forward with the 290,000-square-foot Wizer Block project, which will include 207 residential units and about 36,000 square feet of retail space at the corner of First Street and A Avenue.
He launched a new website — timeline-lo137.com — and a Facebook page that he said will be updated weekly with the latest project news and information. A representative for PHK Development, the company responsible for the project, said it is currently negotiating with subcontractors and has applied for one permit with the Department of Environmental Quality, relating to storm-water control. A tree-removal permit for the property has been tentatively approved by the city.
“What we are doing now is preparation and process,” Kessi said last week. “When we have a Court of Appeals decision, we will responsibly plan for the execution.”
Meanwhile, only three stores remain open for business at the red brick shopping center as tenants continue the process of vacating the property:
• Glass Butterfly is currently holding a sidewalk sale before its lease expires on Oct. 1 and owner Phil Chizum closes the store for good;
• Wizer’s Fine Wines is still open, with a healthy inventory, as it awaits a tentative grand reopening later this month at the former home of World Class Wines at 269 A Ave.;
• And Buddy’s Flowers is enjoying an uneasy, temporary reprieve. Florist Tammy Nakashimada said she and her partner were offered an extension a couple of weeks ago, and are hoping to move out by Aug. 20.
Like the majority of his neighbors, Marketing Concepts Northwest owner Ron Brake had cleared out of his space in the Wizer Block by the July 31 notice-to-vacate deadline. But he wasn’t happy about it.
“Originally, we had until the end of the year, then until September,” he said this week. “Then on July 1, we got this eviction notice. To all of a sudden realize you’ve got a 30-day notice, that’s a challenge. We still had a business to run.”
Brake, whose 62-year-old business had long been headquartered in the basement of the shopping center, calls his recent move “pretty straightforward” after a decision to sell the majority of his office furniture and start fresh.
“We’re basically almost paperless these days,” he said, “so we didn’t have a giant amount of files we had to move.”
But the longtime Lake Oswego resident regrets that he has had to change his city of commerce. “We tried like heck to stay in Lake Oswego, but we couldn’t find anything that met our criteria. So we ended up in West Linn,” Brake said, at 1593 Willamette Falls Drive.
Meanwhile, The Juice Box — which has been open for roughly a year — continues to operate at the edge of the Wizer parking lot along A Avenue, and a Salt and Straw Ice Cream cart is operating through at least the end of the month at the opposite corner of the property.
